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Mr. Heald: Of course that is deliberate. Does the Minister accept that the rule of law is an overarching principle that comprises the various other points that he raised?

Mr. Leslie: We are in danger of becoming a theoretical academic institution instead of focusing precisely on the provisions that should be included in the Bill. Clause 1 says that nothing in the Bill will adversely affect the rule of law, although I understand that there are different interpretations and definitions of that. When I respond to the points made by the hon. Member for Stone (Mr. Cash), I shall explain why it would be neither helpful nor useful to go into definitions of the rule of law, not least for the reasons outlined by the right hon. Member for Berwick-upon-Tweed (Mr. Beith), who said that statute tends to narrow definitions rather than widening them usefully.

Subsection (2) of new clause 8 places an emphasis on ensuring respect for the rule of law. That could be taken as implying that the Lord Chancellor has a current duty to enforce the law against others, but that has never been his responsibility. Furthermore, there is some confusion about the meaning of subsection (3) of new clause 8. For example, would it mean that no judicial remedy would lie against the Lord Chancellor for a breach of duty if it did not lie there before? Could a court henceforth take the existence of a duty into account when deciding a question before it, and if so, how? Although I would not wish to pick too many holes in the drafting of the provision, we would be embarking on difficult territory if we started to set different worthy constitutional principles alongside each other or rank them in such a manner that they became judicially enforceable in different ways.

Subsection (3) of new clause 8 implies that the Lord Chancellor might have existing duties in relation to the rule of law that are currently enforceable via judicial remedy, but we do not agree with that proposition. There are specific duties enforceable on Ministers that could be said to be part of the rule of law, such as those under the Human Rights Act 1998, but there are no duties in relation to the rule of law as a whole.

Mr. Cash: Is not the Minister somewhat hoist by his own petard? The problem that he is describing arises due to the fact that the Government have taken all the
 
31 Jan 2005 : Column 616
 
conventions, rules and assumptions that the courts have developed for centuries and attempted to compress them into the Bill, especially into clause 1. They have thus created the problem. We did not want to have to define the rule of law in itself because we thought that it was already well established. The Government have created a problem by attempting to put that in statute, which will be subject to administrative review.

Mr. Leslie: The inclusion of the clause was not wholly an Executive-determined move. It was the product of much debate and extensive discussion in the other place. In fact, I am glad to say that the Liberal Democrats, who still support clause 1, recognised that the wording of the clause was broadly adequate because it confined itself to the Bill and stated that nothing in the Bill adversely affected the established rule of law. The shadow Lord Chancellor, Lord Kingsland, reasonably and decently withdrew the amendment that he moved in the other place. He said that the debate was

"a good example of constructive thinking between the Government, the Liberal Democrats and ourselves. We are entirely content with the outcome."—[Official Report, House of Lords, 20 December 2004; Vol. 667, c. 1540.]

What a shame that the hon. Member for North-East Hertfordshire (Mr. Heald) is taking a slight step back from the more rational approach of his shadow ministerial colleagues in the other place.

Amendment No. 364 would define parliamentary sovereignty as an aspect of the rule of law. As I said, we know that the rule of law is a complex principle and that many eminent legal minds and constitutional thinkers have failed to agree precisely what it entails and where it begins and ends. That is why I agree with the right hon. Member for Berwick-upon-Tweed, the Chairman of the Constitutional Affairs Committee, that including a definition of it in the Bill would be not only unnecessary, but perhaps a little dangerous.

I cannot agree that even the apparently simple definition in the amendment is either adequate or sufficient. Even if we were to agree that a definition of the rule of law was desirable in statute, it is debatable as to whether parliamentary sovereignty would be referred to within that definition or set out separately as a free-standing principle. Again, the problem is that the amendment tries to bring the two principles together without explaining the relationship between them. When the matter was debated in the other place, it was accepted that picking out specific aspects could lead to the undesirable listing of differently ranked constitutional principles.

Mr. Cash: On the ranking of principles, does the Minister deny that there is uncertainty in judicial and academic circles about the question that I put to the right hon. Member for Berwick-upon-Tweed (Mr. Beith) on competing claims as to which law is superior? When Professor Alan Dashwood, the professor of European law at Cambridge, gave evidence to the European Scrutiny Committee, he made it clear that it is down to judges to decide that. If that is the case, it is most unsatisfactory from the point of view of asserting parliamentary sovereignty—I understand that the Government now agree with me on that.
 
31 Jan 2005 : Column 617
 

Mr. Leslie: I have said it before and I shall say it again: I see parliamentary sovereignty as absolutely prime in our constitutional settlement. I am slightly loth to embark on a discussion with the hon. Gentleman about treaties and how they interact with, or impinge upon, parliamentary sovereignty; suffice it to say that I do not think that anything in the Bill undermines parliamentary sovereignty. On the contrary, the Bill helps to enhance our constitutional settlement by making the different functions of the legislature, the judiciary and the Executive clearer. For those reasons, and for the reasons that I gave in comments on both the amendment and new clause 8, it would not be wise to include those provisions.

Clause 1 adequately and judiciously hits the mark in helping to placate those who may feel that in some way the change in the office of Lord Chancellor is diminishing that officeholder's role, and in defending the existing principle of the rule of law. That is why clause 1 is in the Bill and I urge hon. Members to withdraw their amendments.

Mr. Heald: After hearing the Minister's comments, I remain convinced that not only the rule of law but the sovereignty of Parliament should be referred to in the first declaratory clause—clause 1. In due course—it will be much later on—I shall want a separate vote on new clause 8.

The amendment proposed by my hon. Friend the Member for Stone (Mr. Cash) can be divided on immediately, so if he wants to press the matter I shall support him. The sovereignty of Parliament and the rule of law should be defined in the Bill, and my hon. Friend is right to say that the sovereignty of Parliament is the basis of the rule of law, and to define the rule of law as involving in part—he uses the words "in particular"—the sovereignty of Parliament and the courts.

Mr. Cash: It is unnecessary to add to what I have said already. I certainly want to press the amendment to a Division.

Question put, That the amendment be made:—

The Committee divided: Ayes 127, Noes 283.

Division No. 56 [6.11 pm


AYES

Ainsworth, Peter (E Surrey)
Amess, David
Ancram, rh Michael
Arbuthnot, rh James
Atkinson, David (Bour'mth E)
Bacon, Richard
Barker, Gregory
Beresford, Sir Paul
Blunt, Crispin
Boswell, Tim
Bottomley, Peter (Worthing W)
Brady, Graham
Brazier, Julian
Browning, Mrs Angela
Burns, Simon
Burnside, David
Burt, Alistair
Cameron, David
Campbell, Gregory (E Lond'y)
Cash, William
Chapman, Sir Sydney (Chipping Barnet)
Clarke, rh Kenneth (Rushcliffe)
Clifton-Brown, Geoffrey
Collins, Tim
Conway, Derek
Cormack, Sir Patrick
Cran, James (Beverley)
Curry, rh David
Davis, rh David (Haltemprice & Howden)
Djanogly, Jonathan
Dodds, Nigel
Duncan, Alan (Rutland)
Duncan Smith, rh Iain
Fabricant, Michael
Field, Mark (Cities of London & Westminster)
Flight, Howard
Flook, Adrian
Forth, rh Eric
Fox, Dr. Liam
Francois, Mark
Gale, Roger (N Thanet)
Gibb, Nick (Bognor Regis)
Gillan, Mrs Cheryl
Goodman, Paul
Gray, James (N Wilts)
Green, Damian (Ashford)
Greenway, John
Grieve, Dominic
Hague, rh William
Hammond, Philip
Hawkins, Nick
Heald, Oliver
Heathcoat-Amory, rh David
Hendry, Charles
Hoban, Mark (Fareham)
Horam, John (Orpington)
Howard, rh Michael
Howarth, Gerald (Aldershot)
Hunter, Andrew
Key, Robert (Salisbury)
Kirkbride, Miss Julie
Lait, Mrs Jacqui
Lansley, Andrew
Leigh, Edward
Letwin, rh Oliver
Lewis, Dr. Julian (New Forest E)
Liddell-Grainger, Ian
Lilley, rh Peter
Luff, Peter (M-Worcs)
Mackay, rh Andrew
Maclean, rh David
McLoughlin, Patrick
Malins, Humfrey
Maples, John
Mawhinney, rh Sir Brian
May, rh Mrs Theresa
Mercer, Patrick
Mitchell, Andrew (Sutton Coldfield)
Moss, Malcolm
Murrison, Dr. Andrew
O'Brien, Stephen (Eddisbury)
Osborne, George (Tatton)
Ottaway, Richard
Page, Richard
Paice, James
Paterson, Owen
Pickles, Eric
Portillo, rh Michael
Randall, John
Redwood, rh John
Robertson, Hugh (Faversham & M-Kent)
Robertson, Laurence (Tewk'b'ry)
Robinson, Peter (Belfast E)
Roe, Dame Marion
Rosindell, Andrew
Sayeed, Jonathan
Selous, Andrew
Shephard, rh Mrs Gillian
Shepherd, Richard
Simmonds, Mark
Simpson, Keith (M-Norfolk)
Soames, Nicholas
Spicer, Sir Michael
Spring, Richard
Stanley, rh Sir John
Steen, Anthony
Streeter, Gary
Swayne, Desmond
Swire, Hugo (E Devon)
Syms, Robert
Tapsell, Sir Peter
Taylor, Ian (Esher)
Taylor, John (Solihull)
Taylor, Sir Teddy
Trimble, rh David
Turner, Andrew (Isle of Wight)
Tyrie, Andrew
Viggers, Peter
Waterson, Nigel
Watkinson, Angela
Whittingdale, John
Wiggin, Bill
Wilkinson, John
Willetts, David
Wilshire, David
Yeo, Tim (S Suffolk)
Young, rh Sir George

Tellers for the Ayes:

Mr. David Ruffley and
Mr. Peter Atkinson


NOES

Abbott, Ms Diane
Ainger, Nick
Ainsworth, Bob (Cov'try NE)
Allan, Richard
Allen, Graham
Anderson, rh Donald (Swansea E)
Armstrong, rh Ms Hilary
Atkins, Charlotte
Austin, John
Bailey, Adrian
Baird, Vera
Banks, Tony
Barnes, Harry
Barron, rh Kevin
Beard, Nigel
Begg, Miss Anne
Beith, rh A. J.
Benn, rh Hilary
Berry, Roger
Betts, Clive
Blackman, Liz
Blears, Ms Hazel
Blunkett, rh David
Borrow, David
Bradley, Peter (The Wrekin)
Brennan, Kevin
Brooke, Mrs Annette L.
Browne, Desmond
Buck, Ms Karen
Burden, Richard
Burgon, Colin
Burstow, Paul
Byers, rh Stephen
Byrne, Liam (B'ham Hodge H)
Cable, Dr. Vincent
Campbell, Alan (Tynemouth)
Campbell, rh Sir Menzies (NE Fife)
Campbell, Ronnie (Blyth V)
Caplin, Ivor
Carmichael, Alistair
Casale, Roger
Cawsey, Ian (Brigg)
Challen, Colin
Chapman, Ben (Wirral S)
Chidgey, David
Clapham, Michael
Clark, Mrs Helen (Peterborough)
Clark, Dr. Lynda (Edinburgh Pentlands)
Clarke, rh Charles (Norwich S)
Clarke, rh Tom (Coatbridge & Chryston)
Clarke, Tony (Northampton S)
Clelland, David
Coaker, Vernon
Coffey, Ms Ann
Colman, Tony
Connarty, Michael
Cook, rh Robin (Livingston)
Corbyn, Jeremy
Corston, rh Jean
Cox, Tom (Tooting)
Crausby, David
Cruddas, Jon
Cummings, John
Cunningham, Jim (Coventry S)
Dalyell, Tam
David, Wayne
Davidson, Ian
Davies, rh Denzil (Llanelli)
Davies, Geraint (Croydon C)
Dawson, Hilton
Dhanda, Parmjit
Dismore, Andrew
Dobbin, Jim (Heywood)
Dobson, rh Frank
Donohoe, Brian H.
Doran, Frank
Dowd, Jim (Lewisham W)
Drew, David (Stroud)
Dunwoody, Mrs Gwyneth
Eagle, Maria (L'pool Garston)
Ellman, Mrs Louise
Ennis, Jeff (Barnsley E)
Etherington, Bill
Farrelly, Paul
Field, rh Frank (Birkenhead)
Fisher, Mark
Flynn, Paul (Newport W)
Follett, Barbara
Foster, Don (Bath)
Foster, Michael Jabez (Hastings & Rye)
Francis, Dr. Hywel
Gapes, Mike (Ilford S)
George, rh Bruce (Walsall S)
Gerrard, Neil
Gibson, Dr. Ian
Gilroy, Linda
Godsiff, Roger
Griffiths, Jane (Reading E)
Grogan, John
Hall, Mike (Weaver Vale)
Hamilton, David (Midlothian)
Hanson, David
Harris, Dr. Evan (Oxford W & Abingdon)
Harris, Tom (Glasgow Cathcart)
Havard, Dai (MerthyrTydfil & Rhymney)
Healey, John
Henderson, Ivan (Harwich)
Hendrick, Mark
Hepburn, Stephen
Heppell, John
Heyes, David
Hinchliffe, David
Hopkins, Kelvin
Howarth, rh Alan (Newport E)
Howarth, George (Knowsley N & Sefton E)
Howells, Dr. Kim
Hoyle, Lindsay
Hughes, rh Beverley (Stretford & Urmston)
Hughes, Kevin (Doncaster N)
Humble, Mrs Joan
Hutton, rh John
Iddon, Dr. Brian
Illsley, Eric
Ingram, rh Adam
Irranca-Davies, Huw
Jackson, Glenda (Hampstead & Highgate)
Jackson, Helen (Hillsborough)
Jackson, Robert (Wantage)
Jamieson, David
Jenkins, Brian
Jones, Helen (Warrington N)
Jones, Kevan (N Durham)
Jones, Lynne (Selly Oak)
Jowell, rh Tessa
Joyce, Eric (Falkirk W)
Kaufman, rh Sir Gerald
Keen, Ann (Brentford)
Keetch, Paul
Kemp, Fraser
Kennedy, rh Charles (Ross Skye & Inverness)
Kennedy, rh Jane (Wavertree)
Khabra, Piara S.
Kidney, David
Kilfoyle, Peter
Knight, Jim (S Dorset)
Kumar, Dr. Ashok
Ladyman, Dr. Stephen
Lammy, David
Lawrence, Mrs Jackie
Laxton, Bob (Derby N)
Leslie, Christopher
Levitt, Tom (High Peak)
Liddell, rh Mrs Helen
Lloyd, Tony (Manchester C)
Love, Andrew
Lucas, Ian (Wrexham)
Luke, Iain (Dundee E)
McAvoy, rh Thomas
McCabe, Stephen
McCafferty, Chris
McCartney, rh Ian
McDonagh, Siobhain
MacDonald, Calum
McDonnell, John
McFall, rh John
McIsaac, Shona
McKechin, Ann
Mackinlay, Andrew
McNamara, Kevin
Mactaggart, Fiona
Mahmood, Khalid
Mahon, Mrs Alice
Mallaber, Judy
Mann, John (Bassetlaw)
Marris, Rob (Wolverh'ton SW)
Marsden, Gordon (Blackpool S)
Marshall, David (Glasgow Shettleston)
Marshall-Andrews, Robert
Meacher, rh Michael
Meale, Alan (Mansfield)
Michael, rh Alun
Miliband, David
Miller, Andrew
Moffatt, Laura
Mole, Chris
Moore, Michael
Morris, rh Estelle
Mountford, Kali
Munn, Ms Meg
Naysmith, Dr. Doug
Oaten, Mark (Winchester)
O'Brien, Bill (Normanton)
O'Brien, Mike (N Warks)
O'Hara, Edward
O'Neill, Martin
Öpik, Lembit
Osborne, Sandra (Ayr)
Palmer, Dr. Nick
Perham, Linda
Picking, Anne
Pickthall, Colin
Pike, Peter (Burnley)
Plaskitt, James
Pound, Stephen
Prentice, Ms Bridget (Lewisham E)
Prentice, Gordon (Pendle)
Prosser, Gwyn
Purchase, Ken
Quin, rh Joyce
Quinn, Lawrie
Rapson, Syd (Portsmouth N)
Reed, Andy (Loughborough)
Reid, rh Dr. John (Hamilton N & Bellshill)
Robertson, John (Glasgow Anniesland)
Robinson, Geoffrey (Coventry NW)
Roche, Mrs Barbara
Ross, Ernie (Dundee W)
Roy, Frank (Motherwell)
Ruane, Chris
Ruddock, Joan
Russell, Bob (Colchester)
Russell, Ms Christine (City of Chester)
Ryan, Joan (Enfield N)
Salter, Martin
Sanders, Adrian
Sarwar, Mohammad
Savidge, Malcolm
Sedgemore, Brian
Shaw, Jonathan
Sheerman, Barry
Sheridan, Jim
Short, rh Clare
Simon, Siôn (B'ham Erdington)
Singh, Marsha
Skinner, Dennis
Smith, rh Andrew (Oxford E)
Smith, rh Chris (Islington S & Finsbury)
Smith, Llew (Blaenau Gwent)
Soley, Clive
Southworth, Helen
Starkey, Dr. Phyllis
Steinberg, Gerry
Stewart, Ian (Eccles)
Stinchcombe, Paul
Stoate, Dr. Howard
Stunell, Andrew
Sutcliffe, Gerry
Tami, Mark (Alyn)
Taylor, rh Ann (Dewsbury)
Taylor, Dari (Stockton S)
Taylor, Matthew (Truro)
Thomas, Gareth (Clwyd W)
Thomas, Simon (Ceredigion)
Tipping, Paddy
Todd, Mark (S Derbyshire)
Touhig, Don (Islwyn)
Trickett, Jon
Truswell, Paul
Turner, Dennis (Wolverh'ton SE)
Turner, Dr. Desmond (Brighton Kemptown)
Turner, Neil (Wigan)
Twigg, Derek (Halton)
Twigg, Stephen (Enfield)
Tyler, Paul (N Cornwall)
Tynan, Bill (Hamilton S)
Vaz, Keith (Leicester E)
Vis, Dr. Rudi
Walley, Ms Joan
Ward, Claire
Wareing, Robert N.
Watson, Tom
Whitehead, Dr. Alan
Wicks, Malcolm
Winnick, David
Winterton, Ms Rosie (Doncaster C)
Wood, Mike (Batley)
Woodward, Shaun
Woolas, Phil
Wright, Anthony D. (Gt Yarmouth)
Wright, David (Telford)
Wright, Iain (Hartlepool)
Wright, Tony (Cannock)
Wyatt, Derek

Tellers for the Noes:

James Purnell and
Jim Fitzpatrick


Question accordingly negatived.

 
31 Jan 2005 : Column 620
 

Clause 1 ordered to stand part of the Bill.

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